IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

MARK EDWARD HURST, 

 Plaintiff, 

vs. Civil Action 2:11-cv-1090 

 Judge Smith 

 Magistrate Judge King 

OHIO DEPARTMENT OF REHABILITATION 

AND CORRECTION, et al., 

 Defendants. 

 

ORDER AND 

REPORT AND RECOMMENDATION 

Plaintiff Mark Hurst, a former Ohio prison inmate, filed this 

action under 42 U.S.C. § 1983, naming as defendants the Ohio 

Department of Rehabilitation and Correction (“ODRC”), Gary Mohr, Mona 

Parks, Dr. David Weil, Karen Stanforth, Ralph Wilson, and six 

unidentified members of the “Collegial Review Committee”, and alleging 

that defendants acted with deliberate indifference to plaintiff’s 

medical needs in violation of the Eighth Amendment to the United 

States Constitution. Earlier in these proceedings, ODRC was dismissed 

as a defendant, Order, Doc. No. 8, p. 1, and summary judgment was 

granted to all other defendants on all claims except the claim against 

defendant Dr. Weil in his individual capacity. Opinion and Order, 

Doc. No. 52. Plaintiff thereafter filed the Amended Complaint, Doc. 

No. 58, asserting claims against John Gardner and Dr. Andrew Eddy, the 

previously unidentified members of the “Collegial Review Committee,” 

and Dr. Weil. 

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This matter is now before the Court on Defendants’ Motion for 

Summary Judgment, Doc. No. 96, and on plaintiff’s motions to strike, 

Doc. Nos. 98, 101, 103. The Court will first consider plaintiff’s 

motions to strike. 

MOTIONS TO STRIKE 

Plaintiff has filed two motions to strike Defendants’ Motion for 

Summary Judgment. Doc. Nos. 98, 103. Plaintiff’s motions challenge 

Defendants’ Motion for Summary Judgment as untimely and as violative 

of the page limitation established by S.D. Ohio Civ. R. 7.2. 

Limitation Upon Length of Memoranda. Memoranda in support 

of or in opposition to any motion or application to the 

Court should not exceed twenty (20) pages. In all cases in 

which memoranda exceed twenty (20) pages, counsel must 

include a combined table of contents and a succinct, clear 

and accurate summary, not to exceed five (5) pages, 

indicating the main sections of the memorandum, the 

principal arguments and citations to primary authority made 

in each section, as well as the pages on which each section 

and any sub-sections may be found. 

S.D. Ohio Civ. R. 7.2(a)(3). Although Rule 7.2(a)(3) expresses a 

preference that memoranda not exceed twenty pages, the rule in fact 

contemplates the filing of memoranda that exceed twenty pages and 

provides a procedure for doing so. Prior leave of Court is not 

expressly required by either Rule 7.2 or the procedures of the 

undersigned, so long as the requirements of the rule are satisfied. 

See id. Defendants’ Motion for Summary Judgment substantially

complies with these requirements. Although the summary of argument 

provided by defendants lacks citations to primary authority, the Court 

does not find this default so egregious as to warrant the relief 

sought by plaintiff’s motion to strike. 

 Plaintiff also asks that Defendants’ Motion for Summary Judgment 

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be ordered stricken as untimely. Plaintiff specifically argues that 

defendants failed to meet the Court’s March 19, 2014 deadline for 

filing motions for summary judgment and failed to seek leave to file 

their untimely motion. 

 The Court established March 19, 2014 as the date by which 

dispositive motions were to be filed. Order, Doc. No. 95 (granting 

defendants’ third motion for an extension of time). Defendants’ 

Motion for Summary Judgment was filed on March 20, 2014, at 12:46 

a.m., i.e., 46 minutes beyond that deadline. Defendants acknowledge 

that the filing was late and concede that they did not seek the 

permission of this Court for the late filing, Doc. No. 104, but they 

represent that their counsel “began the process of electronically 

filing Defendant’s [sic] Motion for Summary Judgment at approximately 

11:40 P.M. on . . . March 19, 2014.” Id. at pp. 3-4. According to 

defense counsel, the process took more than one hour to complete 

because of the length and format of the filing. Id. 

Defendants’ Motion for Summary Judgment was untimely. However, 

the delay in filing was minimal, there is no risk of prejudice to 

plaintiff, and defendants’ counsel represents that the delay was 

caused by a technical issue with the Court’s electronic filing system. 

Under these circumstances, the Court declines to sanction defendants 

or to strike Defendants’ Motion for Summary Judgment. See Fed. R. 

Civ. P. 16(f). Accordingly, plaintiffs’ motions to strike Defendants’ 

Motion for Summary Judgment, Doc. Nos. 98, 103, are DENIED. 

 Plaintiff has also filed a motion to strike evidence attached to 

Defendants’ Motion for Summary Judgment. Motion to Strike Evidence, 

Doc. No. 101. Plaintiff challenges defense counsel’s interpretation 

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of the evidence and argues that the medical records attached to 

Defendants’ Motion for Summary Judgment are not properly authenticated 

because “these records can be authenticated [only] by the person that 

wrote and signed the document.” Id. at p. 2. Plaintiff’s arguments 

are not well taken. 

 As an initial matter, “[e]xhibits attached to a dispositive 

motion are not ‘pleadings’ within the meaning of Fed. R. Civ. P. 7(a) 

and are therefore not subject to a motion to strike under Rule 12(f).” 

Fox v. Mich. State Police Dep't, 173 F. App'x 372, 375 (6th Cir. 

2006). Second, the Court is satisfied that the medical records 

attached to Defendants’ Motion for Summary Judgment have been properly 

authenticated. See Affidavit of Defendant David C. Weil, M.D. (“Dr. 

Weil Affidavit”), Doc. No. 96-1, ¶¶ 1, 3, 5; Fed. R. Evid. 901 (“To 

satisfy the requirement of authenticating or identifying an item of 

evidence, the proponent must produce evidence sufficient to support a 

finding that the item is what the proponent claims it is.”). 

Plaintiff’s argument to the contrary notwithstanding, even a person 

who did not personally produce or sign a document may nevertheless 

authenticate the document. See, e.g., Fed. R. Evid. 901(b)(1), (7), 

(9). Finally, plaintiff objects to defendants’ counsel’s 

interpretation of the medical evidence. See Motion to Strike 

Evidence, pp. 2-6. A difference in the interpretation or significance 

of evidence is not a basis for striking that evidence. However, the 

Court will nevertheless consider plaintiff’s objection to defense 

counsel’s arguments in its consideration of Defendants’ Motion for 

Summary Judgment. Plaintiff’s Motion to Strike Evidence, Doc. No. 101, 

is likewise DENIED. 

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MOTION FOR SUMMARY JUDGMENT 

Defendants move for summary judgment. Doc. No. 96. Plaintiff 

opposes the motion. Plaintiff’s Objection to Defendants’ Motion for 

Summary Judgment, Doc. No. 102. Defendants have not filed a reply. 

For the reasons that follow, it is RECOMMENDED that Defendants’ Motion 

for Summary Judgment be GRANTED. 

1. Background 

 Plaintiff alleges that, while he was incarcerated at the Madison 

Correctional Institution (“MaCI”), defendants acted under color of 

state law and in their official and individual capacities to deny him 

medical care in contravention of the Eighth Amendment to the United 

States Constitution. Amended Complaint, ¶ 9. Plaintiff specifically 

alleges that “he was denied necessary surgery and rehabilitation for a 

rotator cuff tear.” Id. Plaintiff seeks compensatory damages, 

judgment declaring that defendants’ failure to provide medical care 

was violative of the Eighth Amendment to the United States 

Constitution, and an injunction ordering defendants to pay for 

corrective surgery and rehabilitation. Id. at ¶ 10. 

 The record establishes that, on May 23, 2010, plaintiff submitted 

a health services request seeking medical attention for a right 

shoulder injury sustained while climbing into his bunk. Defendants’ 

Motion for Summary Judgment, Exhibit A-1. Plaintiff complained of a 

torn rotator cuff and severe pain when raising or reaching with his 

right arm. Id. The ODRC Nursing Assessment/Protocol (“Nurses Sick 

Call”) examined plaintiff the following day. Id. at Exhibit A-2. 

Plaintiff guarded his right arm, had decreased range of motion and 

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strength in his right arm, and was unable to push up. Id. Plaintiff 

was prescribed ibuprofen. Id. 

Plaintiff submitted a second health services request on June 2, 

2010, requesting x-rays of the shoulder. Id. at Exhibit A-3, p. 1. 

Plaintiff was treated in Nurses Sick Call on June 3, 2010, and was 

found to have full range of motion in his extremities and pain in his 

right shoulder. Id. at Exhibit A-4. Plaintiff was referred to 

Doctor’s Sick Call. Id. 

 Defendant Dr. David Weil, a doctor employed by ODRC, saw 

plaintiff on June 4, 2010. Dr. Weil Affidavit, ¶ 10; Defendants’ 

Motion for Summary Judgment, Exhibit A-3, p. 2. On initial 

examination, Dr. Weil determined that plaintiff held his right 

shoulder in a flexed and adducted position, had decreased range of 

motion in his right shoulder secondary to pain, and normal strength 

secondary to pain on abduction. Dr. Weil Affidavit, ¶ 10; Defendants’ 

Motion for Summary Judgment, Exhibit A-3, p. 2. Dr. Weil suspected a 

rotator cuff tear. Dr. Weil Affidavit, ¶ 10; Defendants’ Motion for 

Summary Judgment, Exhibit A-3, p. 2. Dr. Weil prescribed ibuprofen, 

800 mg, for a two month period and a shoulder sling; he also ordered 

an orthopedic consultation and x-rays. Dr. Weil Affidavit, ¶ 11; 

Defendants’ Motion for Summary Judgment, Exhibit A-5, p. 2. According 

to Dr. Weil, his examination of plaintiff “did not reveal anything 

that would warrant an immediate or accelerated consult with an 

orthopedist;” he anticipated the x-rays ordered by him would “be done 

promptly within a day or two.” Dr. Weil Affidavit, ¶ 11.

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 Plaintiff submitted a third health services request on June 25, 

2010, and was seen in Nurses Sick Call on June 26, 2010. Defendants’ 

Motion for Summary Judgment, Exhibits A-6, A-7. Plaintiff exhibited 

decreased range of motion and complained of right shoulder pain. Id. 

at Exhibit A-7. It was noted that the “order for ortho [was] awaiting 

scheduler” and plaintiff was provided a 30 day bottom bunk 

restriction. Id. Plaintiff was again seen in Nurses Sick Call on 

July 25, 2010, and the bottom bunk restriction was continued for 

another 30 days. Id. at Exhibits A-8, A-9. 

Plaintiff underwent an orthopedic consultation at The Ohio State 

University Medical Center on August 5, 2010. Id. at Exhibits A-3, p. 

2; A-5. X-rays of the right shoulder revealed no bone, joint or soft 

tissue abnormalities. Id. at Exhibit A-10. Upon examination, 

plaintiff demonstrated full passive range of motion, no AC tenderness 

to palpation, no crossover sign or signs of weakness and impingement. 

Id. at Exhibit A-5. The orthopedist rendered a provisional diagnosis 

of “rotator cuff tear/tendinitis” and recommended an MRI. Id. 

On August 10, 2010, Dr. Weil treated plaintiff for a skin lesion 

that had “disappeared.” Id. at Exhibit A-12. Dr. Weil continued 

plaintiff’s bottom bunk restriction for four months and his records 

also include the notation “MRI date set?” Id. 

Plaintiff’s prescription for ibuprofen was renewed on August 24, 

2010. Id. at Exhibit A-13. 

Plaintiff underwent an MRI on September 23, 2010. Id. at Exhibit 

A-14. That MRI was read as revealing a complete tear of the rotator 

cuff with retraction of the supraspinatus muscle and tendon, resultant 

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elevation of the humeral head, and abnormal signal in the humeral head 

likely related to a contusion with resultant edema. Id. No definite 

occult fracture was seen. Id. 

Plaintiff submitted a health services request on September 27, 

2010, and was seen in Nurses Sick Call on September 29, 2010. Id. at

Exhibits A-15, A-16. The nurse ordered plaintiff to Doctor’s Sick 

Call. 

Dr. Weil treated plaintiff on October 14, 2010, to review the MRI 

and follow-up for his recent treatment for kidney stones. Id. at

Exhibit A-17. Dr. Weil’s notes indicate that plaintiff “would take 

surgery if offered.” Id. Dr. Weil referred plaintiff for a follow-up 

orthopedic consultation. Id. 

Plaintiff submitted a health services request on November 8, 

2010, and was seen in Nurses Sick Call on November 9, 2010. Id. at

Exhibits A-18, A-19. Plaintiff rated his pain at 6 or 7 out of 10; he 

had limited range of motion and weakness in the right arm. Id. at

Exhibits A-19. The nursing care plan was to refer plaintiff to an 

advanced health provider immediately if there were severe, disabling 

pain or instability of a joint. Id. 

Plaintiff was seen by an orthopedic consultant on December 5, 

2010. Id. at Exhibit A-17. The orthopedist noted, “To OR for 

repair.” Id. 

On December 10, 2010, Certified Nurse Practitioner Holcomb 

ordered that shoulder surgery be scheduled. Id. at Exhibit A-21. Ms. 

Holcomb examined plaintiff on December 20, 2010, and noted decreased 

range of motion in the right shoulder and no visible edema. Id. 

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Plaintiff’s prescription for ibuprofen was renewed on December 

20, 2010, and February 7, 2011. Id. at Exhibits A-23, A-24. 

A Permedion precertification request form was completed on 

February 16, 2011. Id. at Exhibit A-26. The form indicates that 

plaintiff “NEEDS Arthroscopy RTC repair.” Id. 

Dr. Weil cancelled surgery on March 4, 2011, as “not immediately 

medically necessary” and ordered a doctor’s sick call “if pain 

persists.” Id. at Exhibit A-28. A form titled “Verification of 

Cancellation” indicates that no surgery date had been scheduled. Id. 

Plaintiff was given a long-term bottom bunk restriction. See id. 

at Exhibit A-30. 

Plaintiff’s ibuprofen prescription was renewed on March 7, May 

12, June 13, July 14, August 26, September 26, and October 26, 2011. 

Id. at Exhibits A-28, A-31, A-32, A-33, A-37. 

 After his released from prison, plaintiff was treated on November 

16, 2011 by David M. Jackson, M.D., who suggested treatment as 

follows: 

Advised the patient that his rotator cuff tear may not be 

repairable this long post injury - a concern is fixed 

contracture of the supraspinatus with muscle wasting that 

prevents pulling the rotator cuff back to its insertion for 

repair. Rotator cuff repairs are more predictably 

repairable within a few months of injury. It has been so 

long since she [sic] had an MRI I recommended another MRI 

to further evaluate to see if surgery for attempted rotator 

cuff repair is indicated. I suspect repeat MRI will show 

large retracted tear now showing supraspinatus atrophy I 

would recommend a second opinion from a shoulder 

subspecialist as to whether attempted surgical repair is 

indicated. Today with his current right shoulder condition 

I would recommend avoiding work that requires lifting or 

reaching at or above shoulder height. 

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Doc. No. 37, Appendix 7, pp. 2-5. Plaintiff did not undergo the 

repeat MRI suggested by Dr. Jackson because “he could not afford it.” 

Id. 

2. Standard 

The standard for summary judgment is well established. This 

standard is found in Rule 56 of the Federal Rules of Civil Procedure, 

which provides in pertinent part: “The court shall grant summary 

judgment if the movant shows that there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter 

of law.” Fed. R. Civ. P. 56(a). Pursuant to Rule 56(a), summary 

judgment is appropriate if “there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of 

law.” Id. In making this determination, the evidence “must be viewed 

in the light most favorable” to the non-moving party. Adickes v. S.H. 

Kress & Co., 398 U.S. 144, 157 (1970). Summary judgment will not lie 

if the dispute about a material fact is genuine, “that is, if the 

evidence is such that a reasonable jury could return a verdict for the 

non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 

(1986). However, summary judgment is appropriate if the opposing 

party “fails to make a showing sufficient to establish the existence 

of an element essential to that party’s case, and on which that party 

will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 

477 U.S. 317, 322 (1986). The “mere existence of a scintilla of 

evidence in support of the [opposing party’s] position will be 

insufficient; there must be evidence on which the jury could 

reasonably find for the [opposing party].” Anderson, 477 U.S. at 252.

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 The “party seeking summary judgment always bears the initial 

responsibility of informing the district court of the basis for its 

motion, and identifying those portions” of the record which 

demonstrate “the absence of a genuine issue of material fact.” 

Celotex Corp., 477 U.S. at 323. The burden then shifts to the 

nonmoving party who “must set forth specific facts showing that there 

is a genuine issue for trial.” Anderson, 477 U.S. at 250 (quoting 

Fed. R. Civ. P. 56(e)). “Once the moving party has proved that no 

material facts exist, the non-moving party must do more than raise a 

metaphysical or conjectural doubt about issues requiring resolution at 

trial.” Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th 

Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

475 U.S. 574, 586 (1986)). 

3. Discussion 

 Plaintiff asserts claims against Dr. David Weil, Dr. Andrew Eddy, 

and John Gardner in their official and individual capacities pursuant 

to 42 U.S.C. § 1983. Section 1983 provides in relevant part: 

Every person who, under color of any statute, ordinance, 

regulation, custom, or usage, of any State or Territory or 

the District of Columbia, subjects, or causes to be 

subjected, any citizen of the United States or other person 

within the jurisdiction thereof to the deprivation of any 

rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party injured 

in an action at law, suit in equity, or other proper 

proceeding for redress . . . . 

42 U.S.C. § 1983. A prima facie case under § 1983 requires evidence 

of (1) conduct by an individual acting under color of state law, and 

(2) the deprivation of a right secured by the Constitution or laws of 

the United States. Day v. Wayne Cnty. Bd. of Auditors, 749 F.2d 1199, 

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1202 (6th Cir. 1984) (citing Parratt v. Taylor, 451 U.S. 527, 535 

(1981)). Section 1983 merely provides a vehicle for enforcing 

individual rights found elsewhere and does not itself establish any 

substantive rights. See Gonzaga Univ. v. Doe, 536 U.S. 273, 285 

(2002). 

 In the case presently before the Court, plaintiff alleges that 

defendants acted with deliberate indifference to his medical needs in 

violation of the Eighth Amendment to the United States Constitution. 

 a. Official Capacity Claims

 Plaintiff alleges that defendants are liable in their official 

capacities for denying him medical care in contravention of the Eighth 

Amendment to the United States Constitution. Amended Complaint, ¶ 9. 

Official capacity suits “‘generally represent only another way of 

pleading an action against an entity of which an officer is an 

agent.’” Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (quoting 

Monell v. Dep't of Social Servs., 436 U.S. 658, 690 n.55 (1978)). 

“[A]n official-capacity suit is, in all respects other than name, to 

be treated as a suit against the entity.” Id. (citing Brandon v. 

Holt, 469 U.S. 464, 471-72 (1985)). The government entity in the 

instant action is the ODRC. This state agency is immune from suit in 

this Court by virtue of the Eleventh Amendment to the United States 

Constitution. See Beil v. Lake Erie Corr. Records Dept., 282 F. App’x 

363 (6th Cir. 2008). See also Regents of Univ. of Cal. v. Doe, 519 

U.S. 425, 429 (1997) (Eleventh Amendment sovereign immunity applies 

not only to the states themselves but also to “state agents and 

instrumentalities”). 

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 The Eleventh Amendment does not, however, preclude official 

capacity claims for certain forms of prospective injunctive relief. 

Ex parte Young, 209 U.S. 123 (1908). The injunctive relief sought by 

plaintiff, however, does not fall within that category of relief 

permitted by the Eleventh Amendment. 

 Plaintiff seeks monetary damages, a judgment declaring that 

defendants’ failure to provide medical care was violative of the 

Eighth Amendment to the United States Constitution, and an injunction 

ordering defendants to pay for plaintiff’s surgery and rehabilitation. 

Amended Complaint, ¶ 10. The declaratory judgment sought by plaintiff 

would be retroactive in nature, see Sandy Frank Prods. LLC v. Mich. 

Film Office, No. 11-10933, 2012 WL 12752, at *4 (E.D. Mich. Jan 4, 

2012), and the injunction requested by plaintiff is for monetary 

relief. See Ernst v. Rising, 427, F.3d 351, 368 (6th Cir. 2005) 

(citing Barton v. Summers, 293 F.3d 944, 949 (6th Cir. 2002)). 

Because plaintiff seeks only retroactive relief and monetary damages, 

defendants are entitled to Eleventh Amendment immunity on plaintiff’s 

official capacity claims. 

 It is therefore RECOMMENDED that Defendants’ Motion for Summary 

Judgment be GRANTED with respect to plaintiff’s claims under § 1983 

against all remaining defendants in their official capacity. 

 b. Individual Capacity Claims 

 Plaintiff also alleges that defendants are liable in their 

individual capacities for denying him medical care in contravention of 

the Eighth Amendment to the United States Constitution. Amended

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Complaint, ¶ 9. Plaintiff specifically alleges that “he was denied 

necessary surgery and rehabilitation for a rotator cuff tear[.]” Id. 

 The Eighth Amendment to the United States Constitution prohibits 

cruel and unusual punishment. To prevail on his claims against each 

defendant, plaintiff must prove that the defendant acted with 

“deliberate indifference to [his] serious medical needs.” Estelle v. 

Gamble, 429 U.S. 97, 103-04 (1976). This standard includes both an 

objective and a subjective component. The objective component 

requires a plaintiff to show the existence of a “sufficiently serious” 

medical need. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The 

subjective component requires a plaintiff to “allege facts which, if 

true, would show that the official being sued subjectively perceived 

facts from which to infer substantial risk to the prisoner, that he 

did in fact draw the inference, and that he then disregarded that 

risk.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (citing 

Farmer, 511 U.S. at 837). However, “a plaintiff need not show that 

the official acted ‘for the very purpose of causing harm or with 

knowledge that harm will result.’” Id. (quoting Farmer, 511 U.S. at 

835). “Instead, ‘deliberate indifference to a substantial risk of 

serious harm to a prisoner is the equivalent of recklessly 

disregarding that risk.’” Id. (quoting Farmer, 511 U.S. at 836). 

 “A serious medical need is ‘one that has been diagnosed by a 

physician as mandating treatment or one that is so obvious that even a 

lay person would easily recognize the necessity for a doctor's 

attention.’” McCarthy v. Place, 313 F. App’x 810, 814 (6th Cir. 2008) 

(quoting Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008)). 

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Although defendants argue that plaintiff did not suffer a serious 

medical need, they concede that plaintiff suffered from a rotator cuff 

tear. Defendants’ Motion for Summary Judgment, p. 27. Courts have 

found that a torn rotator cuff presents a serious medical need. See 

Kostyo v. Harvey, No. 1:09CV2509, 2010 WL 3522449, at *8 (N.D. Ohio 

Sept. 8, 2010) (“Severe shoulder pain, including a possible rotator 

cuff tear, may qualify as a serious medical need.”); Palmer v. Randle, 

No. 10-cv-718, 2011 WL 2470062, at *4 (S.D. Ill. June 20, 2011) (“A 

torn rotator cuff . . . is the sort of chronic, painful condition that 

a layperson would find objectively serious.”); Thomas v. Neves, No. 

2:07-CV-01249, 2010 WL 1644789, at *3 (E.D. Cal. Apr. 21, 2010) 

(concluding that a rotator cuff tear is a serious medical need). This 

Court concludes that a reasonable jury could find that plaintiff 

suffered a serious medical need. 

 As discussed supra, the subjective component of plaintiff’s 

Eighth Amendment claim requires that the facts alleged by the 

plaintiff, if true, show that the official “subjectively perceived 

facts from which to infer substantial risk to the prisoner, that he 

did in fact draw the inference, and that he then disregarded that 

risk.” Comstock, 273 F.3d at 703 (citing Farmer, 511 U.S. at 837). 

Although officials may not deliberately disregard a medical need, 

“[m]edical malpractice does not become a constitutional violation 

merely because the victim is a prisoner.” Estelle, 429 U.S. at 106. 

Inadvertent failure or negligence in providing medical care does not 

rise to the level of a constitutional deprivation, as deliberate 

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indifference “describes a state of mind more blameworthy than 

negligence.” Farmer, 511 U.S. at 835. 

 Nevertheless, a plaintiff is not required to show that the 

official acted “for the very purpose of causing harm or with knowledge 

that harm will result.” Id. Liability can be found if a prison 

official “knows that inmates face a substantial risk of serious harm 

and disregards that risk by failing to take reasonable measures to 

abate it.” Id. at 847. 

 In the case presently before the Court, the evidence is 

insufficient to find that defendants acted with the requisite mens 

rea. Plaintiff allegedly injured his right shoulder in May 2010 while 

climbing into his bunk. Defendants’ Motion for Summary Judgment, 

Exhibit A-1. After two visits to Nurses Sick Call, plaintiff treated 

with Dr. Weil on June 4, 2010. Dr. Weil Affidavit, ¶ 10; Defendants’ 

Motion for Summary Judgment, Exhibit A-3, p. 2. Dr. Weil noted that 

plaintiff had shoulder pain and suggested that plaintiff may have 

suffered a rotator cuff tear. Dr. Weil Affidavit, ¶ 10; Defendants’ 

Motion for Summary Judgment, Exhibit A-3, p. 2. Dr. Weil prescribed 

ibuprofen, 800 mg, for a two month period and a shoulder sling; he 

also ordered an orthopedic consultation, x-rays, and a bottom bunk 

restriction. Dr. Weil Affidavit, ¶ 11; Defendants’ Motion for Summary 

Judgment, Exhibit A-5, p. 2; Exhibit A-12. On October 14, 2010, Dr. 

Weil reviewed with plaintiff the results of the September 23, 2010 MRI 

of the right shoulder. Defendants’ Motion for Summary Judgment, 

Exhibit A-17. Dr. Weil also noted that plaintiff “would take surgery 

if offered.” Id. Dr. Weil referred plaintiff for a follow-up 

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orthopedic consultation. Id. Plaintiff treated with the consultative 

orthopedist on December 5, 2010; the doctor’s treatment notes 

indicate: “To OR for repair.” Defendants’ Motion for Summary 

Judgment, Exhibit A-17. 

Dr. Weil cancelled plaintiff’s surgery on March 4, 2011, as “not 

immediately medically necessary” and ordered doctor’s sick call “if 

pain persists.” Id. at Exhibit A-28. Dr. Weil explains the 

cancellation of plaintiff’s surgery as follows: 

On March 4, 2011 I entered my physician’s order stating 

“cancel surgery, DSC [doctors sick call] if pain persists.” 

It must be emphasized that no date for surgery ever 

existed. The order for “cancellation” simply stopped the 

scheduling process which might have ended up with a surgery 

date. I did this after I was notified that surgery had yet 

to be scheduled. I realized at that time that it had been 

almost ten months since his injury and that the window for 

optimal surgical repair was almost certainly passed. . . . 

This decision was based upon the medical literature as it 

pertains to the unsettled debate regarding the timing of 

and the appropriate candidates for operative rotator cuff 

repair. Specifically, one will see reference to the age of 

the patient and the age of the injury. The closer a 

patient is to sixty-years of age and an injury greater than 

six-weeks old tends to predict much poorer surgical 

outcomes. Rotator cuff tears can be managed without 

surgical intervention. In addition, I offered doctor’s 

sick call if pain persists inviting Mr. Hurst to follow-up 

if his shoulder continued to bother him. 

Dr. Weil Affidavit, ¶ 39. 

Although there is evidence that Dr. Weil was aware of plaintiff’s 

rotator cuff tear, there is no evidence to suggest that Dr. Weil 

subjectively perceived facts from which to draw an inference that 

cancellation of surgery (or, as defendants argue, cancellation of the 

process of scheduling surgery) created a substantial risk of harm to 

plaintiff. See Dr. Weil Affidavit, ¶ 39 (“The closer a patient is to 

sixty-years of age and an injury greater than six-weeks old tends to 

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predict much poorer surgical outcomes.”); Doc. No. 37, Appendix 7, pp. 

2-5 (“Rotator cuff repairs are more predictably repairable within a 

few months of injury.”); Affidavit of Defendant Andrew Eddy, M.D., 

Doc. No. 96-39 (“Dr. Eddy Affidavit”), ¶ 26 (“Dr. Weil found it to be 

not medically necessary to continue to attempt to have this surgery 

scheduled and then completed. Dr. Weil based this decision on current 

medical evidence regarding rotator cuff repairs and I concurred with 

him.”). There is also no evidence that surgical repair is the only 

acceptable method of treating a supraspinatus tear. To the contrary, 

both Dr. Eddy and Dr. Weil aver that non-surgical treatment is 

possible and appropriate. Dr. Eddy Affidavit, ¶ 27 (“Current medical 

evidence indicates nonsurgical management is appropriate in isolated 

supraspinatus tears that occur in older individuals and those that 

occur with minimal trauma, as in this case. Mr. Hurst age 57 at the 

time of his injury, tore his rotator cuff with the simple motion of 

pulling himself up into bunk bed.”); Dr. Weil Affidavit, ¶ 39 

(“Rotator cuff tears can be managed without surgical intervention.”). 

Moreover, plaintiff has not presented any evidence that his medical 

care was inadequate, let alone “so woefully inadequate as to amount to 

no treatment at all.” See Westlake v. Lucas, 537 F.2d 857, 860 n.5 

(6th Cir. 1976). See also McCarthy v. Maitland Place, D.D.S., 313 F. 

App’x 810, 814 (6th Cir. 2008). Accordingly, plaintiff cannot 

satisfy the subjective component with respect to Dr. Weil. Although 

plaintiff may disagree with his course of medical treatment, he has 

failed to articulate facts or produce evidence to suggest that Dr. 

Weil acted with deliberate indifference. 

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Similarly, plaintiff cannot satisfy the subjective component with 

respect to Dr. Eddy and John Gardner. Dr. Eddy and John Gardner 

allegedly participated in the decision to cancel plaintiff’s surgery 

in March 2011. See Amended Complaint, ¶ 11. Neither Dr. Eddy nor 

John Gardner treated plaintiff and there is no evidence to suggest 

that either defendant was aware of plaintiff’s torn rotator cuff prior 

to March 2011. As discussed supra, there is also no evidence that 

cancellation of surgery in March 2011 (or, as defendants argue, 

cancellation of the process of scheduling surgery) created a 

substantial risk of harm to plaintiff. Accordingly, plaintiff cannot 

satisfy the subjective component with respect to Dr. Eddy and John 

Gardner. 

The remaining defendants are therefore entitled to summary 

judgment on plaintiff’s claims against them in their individual 

capacity. 

Plaintiff has not raised a genuine issue of material fact and 

defendants are entitled to judgment as a matter of law on all of 

plaintiff’s claims. It is therefore RECOMMENDED that Defendants’ 

Motion for Summary Judgment, Doc. No. 96, be GRANTED. 

 If any party seeks review by the District Judge of this Report 

and Recommendation, that party may, within fourteen (14) days, file 

and serve on all parties objections to the Report and Recommendation, 

specifically designating this Report and Recommendation, and the part 

thereof in question, as well as the basis for objection thereto. 28 

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections 

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must be filed within fourteen (14) days after being served with a copy 

thereof. Fed. R. Civ. P. 72(b). 

 The parties are specifically advised that failure to object to 

the Report and Recommendation will result in a waiver of the right to 

de novo review by the District Judge and of the right to appeal the 

decision of the District Court adopting the Report and Recommendation. 

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of 

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States 

v. Walters, 638 F.2d 947 (6th Cir. 1981). 

August 7, 2014 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

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